Important To Debate Questions On Basic Structure Doctrine : Justice Jayasankaran Nambiar

Kerala High Court judge Justice A. K. Jayasankaran Nambiar while delivering the presidential address for the lecture organised by the Ernakulam Govt Law College Old Students and Teachers Association at Kochi on Saturday on the 'Basic Structure Of the Indian Constitution & its Present Day Challenges' spoke on the dynamic nature of the Indian Constitution and how in a vibrant democracy like ours active discussion on constitutional matters must be encouraged.

Justice Nambiar said that citizens should not shy away from discussing the constitution. “It is amusing that there is an air of skepticism and uncertainty and fear these days when the basic structure doctrine is mentioned. I don’t know why there is an apprehension when constitutional matters are discussed. In a vibrant democracy like ours active discussion about the governing document should be encouraged", Justice Nambiar said implicitly alluding to recent debates on the basic structure doctrine after Vice President Jagdeep Dhankhar criticised the Kesavananda Bharati decision as setting a wrong precedent.

Justice Nambiar spoke of how the constitution being an evolving document, can never be static. As long there is change in the society, the constitution will need to fall in sync with the changes and its interpretation needs to be dynamic, he remarked. In this regard he said:

“So let’s not freeze the constitution for times to come. That would be like the American saying the dead hand of the past governing the future. You want the constitution to remain relevant as the governing document. So you need to confine what you’re freezing to the bare minimum. Otherwise you’re preventing it from evolving”, Justice Nambiar said.

He referred to the provision for amending the constitution through Article 368, as proof that the constitution was not meant to be frozen in time. He also spoke on how Article 13 of the constitution showed the intention of the constitution framers that the fundamental rights under Part 3 cannot be tampered with, except to increase their scope and ambit. The issues on which the constituent assembly could not come to a consensus on were put in part 4 as the Directive Principles of State Policy. Part 4 was to inform the State on how it should make its laws for the society, he stated.

“What is apparent from a joint reading of Part 3, Part 4 and Art. 368 is that there is an inbuilt scheme for incremental empowerment of the citizenry. This is important because the constitution was never meant to be static.”

In this scheme of incremental empowerment of citizens, the natural question to be asked is the scope for limitations on these powers of amendment and that is the relevance of the basic structure document according to Justice Nambiar.

“There is where the doctrine of basic structure comes in. Against a scheme of incremental empowerment of the citizenry, against a scheme of change that is in built in our constitution, how do you explain an implied limitation? Why should the basic structure doctrine evolved by the judiciary be seen as freezing the Constitution for all the times to come? These are the questions that will be continued to be asked, because it militates against the basic scheme of our constitution. Therefore, it is important to engage in these deliberations to find answers to the many questions that are coming before us today.“

Stressing on the need to have a constitution that adapts to changing times, and the need to balance this by placing certain regulations in place, Justice Nambiar said

“What happened in 1973 need not be what happens in 2023. You have to see things in the backdrop of the changing political landscape. You will have situations where you will have to re-examine and introspect on earlier laws. That is the very essence of a thinking population and the essence of democracy. Every citizen must have a say in the matter of governance, this is where these debates have significance”

Justice Nambiar set the stage for the guest speaker of the event Senior Advocate Dushyant Dave, by stressing on the need for debate and deliberation on matters of constitutional significance. Observing that Indians are argumentative in nature, he said “the spirit of debate we have is good and together this can be a constructive exercise”.

The presidential address was followed by a lecture by Senior Advocate Dushyant Dave who spoke at length about the history and evolution of the basic structure doctrine and the present day challenges to it, posed by ruling parties and the parliament. He also spoke on the role of the judiciary in protecting the basic structure.

The event was held at Angan Auditorium, Bharat Hotel, Ernakulam and was inaugurated by Sri. P Rajeev, Law Minister of Kerala

Live updates of the event can be accessed here.

Click here to watch the streaming of the event.